Not so fast! FCC says net neutrality lawsuits filed too soon

The Federal Communications Commission is asking a DC appeals court to throw out the Verizon and MetroPCS lawsuits against the agency's new Open Internet rules. Verizon filed the initial lawsuit papers on January 20, arguing that the FCC's move "goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers." Ditto, declared MetroPCS a few days later.

But the government isn't taking on Verizon's specific arguments. In fact, the Commission's response is about as technically procedural as it gets. The FCC says that both companies jumped the gun by suing the FCC before its December net neutrality Order was even published in the Federal Register. That's the action that makes any federal agency decision live and official.

The Verizon and MetroPCS appeals are "fatally premature and must be dismissed," the FCC told the US Court of Appeals for the District of Columbia Circuit on Friday (response to Verizon here; response to MetroPCS here).

What is a "public notice"?

A little background (take a deep breath): Section 47 § 405(a) of the United States Code says that if aggrieved parties want to sue a government agency before the DC Circuit, the case "shall be computed from the date upon which the Commission gives public notice of the order, decision, report, or action complained of." The time window for such suits is "within thirty days" of said notice.

How is "public notice" legally understood? FCC Rule 1.4(b)(1) defines it as "the date of publication in the Federal Register."

But Verizon sees the matter differently. The telco's suit insists that the Commission's net neutrality rules modify the wireless carrier's licenses, turning the case into a licensing dispute. In that instance, FCC Rule 1.4(b)(2) applies—it defines public notice as the date of a document's release.

The FCC pushes back that rule 1.4(b)(2) only applies to individual licensing decisions. The Open Internet Order applies to all license holders across the board. The Order "is a pure rulemaking decision of general applicability that does not adjudicate any individual license matter and therefore falls within Rule 1.4(b)(1) and not Rule 1.4(b)(2)."

Bottom line—the decision

establishes general rules that apply to all fixed and wireless mobile ISPs, not to any specific ISP. The Order does not even discuss its application to any specific ISP. Nor, in light of the numerous ISPs that provide service throughout the country, can the Order be viewed as addressing such a small set of identifiable ISPs (using wireless or any other technology) that it can properly be described as implicitly pertaining only to specific parties.

Interests of efficiency

But the procedural trench war doesn't end here. There's still the matter of whether the case will actually be heard in the DC Circuit, which is what Verizon wants. That's the venue where a three judge panel last year threw out the FCC's sanctions against Comcast for P2P throttling.

Not only is Verizon pushing for the DC Circuit, it has also hired the attorney who triumphed over the FCC on behalf of Comcast in that case. But the Commission's lawyers have also filed a "not so fast" petition in this instance, noting that the appeals venue still might be chosen by lottery.

Therefore, "we ask that, in the interests of efficiency and conservation of resources, the Court defer the FCC's response to and the Court's consideration of Verizon's motion until it is clear whether the case will be heard in this Court," the government says.

These responses give the impression that the FCC wants to stay as far away from the DC Circuit as possible. The agency's legal team doesn't even appear to want these latest motions decided by that court. Frankly, if we were them, we wouldn't either.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.